Column: Did You Think John Ashcroft Wasn't Serious About Guns?

by P.M. Carpenter

Mr. Carpenter is a writer and doctoral candidate in American history at the University of Illinois.

Bush II's sometimes-we-mean-it-sometimes-we-don't"strict constructionists" are at it again and this time, it so happens, they don't mean it. One shouldn't need to keep score when it comes to tracking ideological consistency--which is presumably inherent in terms such as"strict" constructionism--but when a dog of ultraconservatism is chasing a rabbit of shinier goals, allegiance to one consistency is easily discarded in favor of allegiance to another.

The dashing dog, as one might expect, is Attorney General John Ashcroft, whose Senate confirmation in February, 2001 was touted by one conservative group as"a warmup for when George W. Bush nominates a strict constructionist to the Supreme Court." A hefty serving of Ashcroft's much-vaunted strict constructionism soon hit the plate, for example, when before the Senate he defended W.'s plan for military tribunals which erased quaint constitutional niceties such as presumption of innocence and a defendant's right to choose counsel. Those among the"voices of negativism" who didn't like it, said the A.G. above a chorus of God Bless America, could shove it.

The rabbit is the reinterpretation of the Second Amendment as understood by Supreme Courts, Justice Departments, and legal scholars since 1939. It was in that year, in United States v. Miller, that the high Court frowned on folks toting around sawed-off shotguns and decided Congress had the constitutional right to do something about it. Weenies, all nine of 'em; probably the products of day care and insufficient school prayer.

The Court not uncuriously ruled that the Second Amendment protected gun-ownership rights only in"some reasonable relationship to the preservation of efficiency of a well-regulated militia." This indeed was scantly curious for the simple reason that the Constitution states"the right of the people to keep and bear arms" stands in firm relationship to the necessity of"a well-regulated militia." Holy Mary Mother of God, what a poser.

But a year ago in a letter to the National Rifle Association our deconstructionist strict constructionist Attorney General wrote that he"believe[d] the amendment's plain meaning and original intent" were contrary to the express law of the land generally since 1791 and specifically since U.S. v. Miller. That was the opening shot across the bow of reason which everybody knew would be pursued, in time, more officially. And, again as everybody knows, he has now done just that. Say what you like about the lad, but John never disappoints.

Last Monday, May 6, Ashcroft filed briefs with the Supreme Court through Solicitor General Ted Olson that set out to correct the typically sloppy writing by the framers of the Constitution."The Second Amendment more broadly protects the rights of individuals," he waxed legally,"including persons who are not members of any militia or engaged in active military service or training."

What was Ashcroft's specific thinking as to why Jim Madison & Associates bothered to mention militias? Dear friend, your guess is as good as mine, for John, Ted, and (wouldn't it be nice?) secretary Alice put this" current position of the United States" quite literally in a footnote. Nevertheless Olson instructed that we, by-God, should already know what Ashcroft's thinking was. When declining discussion of the footnoted upheaval of decades-old law, he said, simply,"The briefs speak for themselves." Oh. Got it.

No one should be surprised at the manner in which this administration officially introduced its odd version of strict constructionism on the right of nearly anyone to own guns--which, incidentally, in 1999 alone took half as many American lives as were lost in Vietnam. Bush II's penchant for back-dooring its more beloved policies into the limelight is not only not new, it's routine. The White House's most fundamental policy is to speechify about this and that policy to gain the confidence of the unsuspecting, then quietly zip off an executive order or dispatch some memo-leaking factotum to undo what the public believed was undoable. We've witnessed the ploy time and again, on everything from environmental regulations to ... you name it.

Though unsurprising, why the administration opted for this tired tactic on the issue of guns, of all things, is an open question. The change in 60-year-old policy was coming and everyone knew it was coming. When you get a gazillion dollars in NRA campaign finance it's considered sporting to return the favor. So why not just be obvious about the obvious? Far from inconceivable, of course, is that Karl Rove is now happily engaged in surveying and focus-grouping public reaction to determine the next step's timing.

The optional guess is this: For Bush II the tactic was but pathological. Short of"throw[ing] red meat to the gun lobby," as one gun-control advocate characterized it, there was no good reason for back-dooring the new official stance. And that's likely all the footnote will amount to tactically for now, since in neither case up for appeal did the government urge a Supreme Court review. Still, Bush and Justice Department minions eventually will plunge ahead and do in court more brazenly what they damn well want to do anyway. The public's welfare doesn't matter. The administration may have a debt to repay, but in this instance, for this crowd, it's an eminently digestible one.

In short, we've only witnessed another manifestation of Up-Yours Ideology, pathologically grounded in entitlement and the mere jolly-good fun of game playing. That's my guess.

More Comments:

Chris Messner -
5/21/2002

"that guns are much more dangerous than telephones or computers."

The point you miss is that, in the infomation age, a coputer or phone can be much more devastating than a gun, as now you can in rapid order get information from a computer or telephone on how to make bombs from household chemicals to blow up buildings. I recall a Jewish man lynched in the South due to newspaper rants (not guns), I also recall the US going to war under the significant influence of newspapers during the Spanish American War. Please remember, 'the pen is mightier than the sword', or the gun, in the long run.

Chris

Rhett Nack -
5/20/2002

How true. Let's make Charleton King and get rid of Congress, the President, and those pesky amendments 1 and 3-10 with all their long and hard-to-spell words.

pilgrimbob -
5/19/2002

Talk about illogical! Revolutions are started by ideas not guns. Ideas can be spread very effectively by telephones and computers. Ergo telephones and computers should be regulated by the moronic reasoning of the left. Guns are tool. It the mind that contols the hand which controls the trigger which determines if the gun is used for good or ill. Considering the record of governments I prefer that private citizens be armed.
pilgrimbob

Peter K. Boucher -
5/16/2002

Emerson v. US is the current case before the Supreme Court in which Olsen's dreaded footnote appears. US v. Emerson is the case that Emerson lost in the 5th Circuit, the conclusions of which Olsen's dreaded footnote expounds.

Clayton E. Cramer -
5/16/2002

"The holding in Emerson, emphasizing the individual nature of the right to bear arms, breaks no new ground. Even most collective rights theorists - and the Emerson court itself - acknowledge that the maintenance of a state militia required protection of the individual right to private ownership of firearms."

This statement is incorrect. Collective rights theorists have consistently denied that there was an individual right of any sort, from when it was hatched in a Harvard Law Review article in 1900, right up to the arguments advanced by the Clinton Administration in the Emerson appeal, and the amicus brief offered by Professors Michael Bellesiles, Saul Cornell, et. al. in that same case.

"What Ashcroft/Olson have done - as those who posted here would realize had they read the government's brief - is substitute their political agenda for legal reasoning. They have disregarded all precedent and the language of the Second Amendment - literally in a footnote."

This statement is also incorrect. Until City of Salina v. Blaksley (Kan. 1905), there was not a single court decision anywhere in the U.S. that denied an individual rights view. A small number of the decisions believed that the right could be limited to weapons appropriate to militia use, and restrictions on concealed carrying of arms were widely accepted. But the claim that the right was collective in nature was manufactured in the 20th century.

"Emerson just didn't quite say what Ashcroft/Olson and the NRA wish it did." Actually, NRA didn't take a position concerning the federal law in dispute in Emerson.

"There is nothing about the Second Amendment that precludes regulation of the manufacture, sale and distribution of firearms." "No gun law has ever been struck down on Second Amendment grounds." Wrong on both counts. State v. Nunn (Ga. 1846), for example, was a state ban on sale of concealable handguns, and it was struck down as a violation of the Second Amendment.

Clayton E. Cramer -
5/16/2002

I didn't claim that gun control would have prevented the Civil War, but that the fact that it failed to prevent it is held against me.

If this person who is afraid to use his real name would actually bother to read any of the history of the period, he would find that fear of government oppression -- not the desire to protect militias -- was the origin of the Second Amendment. You can start out by reading Blackstone's _Commentaries on the Laws of England_ concerning the importance of the right to keep and bear arms. Read the New Hampshire request as well -- not a word about militias. Consider Samuel Adams's request at the Massachusetts ratifying convention -- not tied to militias, either. This "Common Sense" seems to have no knowledge of the history of the Second Amendment.

Clayton E. Cramer -
5/16/2002

We require a license to drive a car on public roads. If you want to drive a car on private property, few (any?) states require a license--even though automobiles are a factor in more deaths than guns. Of course, the right to drive doesn't have its own amendment to the constitution.

Common Sense -
5/15/2002

It appears that to illogic and ignorance we can now add forgetfulness. Clayton Cramer's first posting to this comment series claims that the Second Amendment would have prevented the Holocaust, the Soviet Gulag, the Armenian and Cambodian genocides, and the East Timor slaughter. This is not "all human evils" (he left out Guernica and My Lai, for example), but measured in numbers of lives it covers a very high percentage - for an constitutional provision that was actually designed to protect the militias of 18th century Virginia and Massachusetts, etc., not to stop war and massacre (except in NRA Fantasyland ).

Common Sense -
5/15/2002

The point, for anyone who may be confused by Mr. Cramer's disjointed ramblings, is that guns are much more dangerous than telephones or computers.

Of course, any technology can be used for good or ill. Walking shoes can protect feet or damage flowers, for example. But we don't require a state license to walk whereas we do require one for driving a car.

Jacob Goldfinger -
5/15/2002

The holding in Emerson, emphasizing the individual nature of the right to bear arms, breaks no new ground. Even most collective rights theorists - and the Emerson court itself - acknowledge that the maintenance of a state militia required protection of the individual right to private ownership of firearms.

Even unmoored from the limits of the militia conception of the Second Amendment, the individual right is clearly subject to regulation, as Emerson notes.

What Ashcroft/Olson have done - as those who posted here would realize had they read the government's brief - is substitute their political agenda for legal reasoning. They have disregarded all precedent and the language of the Second Amendment - literally in a footnote. Strict constructionism? Ha!

At the same time, they said the Supreme Court needs not test that principle now, they said. Of course not; the government won in the lower court. Emerson just didn't quite say what Ashcroft/Olson and the NRA wish it did. (Remember when Ashcroft recused himself from Enron-related inquiries because of campaign contributions he received from the company? Well he's received even more from the NRA. But that's another issue.)

The entire Second Amendment debate is quite boring from a legal/constitutional perspective. There is nothing about the Second Amendment that precludes regulation of the manufacture, sale and distribution of firearms. The NRA knows this, and is effective because it AVOIDS litigation. It does this by demonizing gun-control advocates, even though there is nobody in the federal government who has advocated repealing individual gun rights: not Charles Schumer, not Diane Feinstein, not Bill Clinton or Al Gore or Janet Reno. Nobody.

The NRA wins the political battles; it has never won the legal battles, because there is really no constitutional debate. No gun law has ever been struck down on Second Amendment grounds.

Peter -
5/15/2002

Yes. Thanks for the correction.

norman heath -
5/15/2002

Proponents of the "collectivist" or "states' right" readings of the Second Amendment always begin, middle, and end by attacking the "individual right" reading, leaving out the part where they support their own interpretation by demonstrating the existence of a collective or states' right in actual law. They rarely even bother to theorize what the contours of their own interpretation would be. They know what they are opposed to, but they have no coherent model for what they support.

It is not sufficient for P.M. Carpenter to tell us which interpretation he rejects. If he believes the Second Amendment reserves some power to the states, let him provide us examples of a state asserting standing under this amendment. Let him provide an example of a federal law being struck down as an unconstitutional infringement on the states' right to maintain a militia. Let him show us where this states' or collective right actually exists and has been asserted.

I have catalogued numerous examples of actual militia/federalism controversies. In such controversies, the existence of a state "right" to maintain a militia over federal interference has invariably been rejected by the courts, starting with the Supreme Court in 1820. See my article, "Exposing the Second Amendment: Federal Preemption of State Militia Legislation," 79 UNIVERSITY OF DETROIT MERCY LAW REVIEW 39.

Mr. Carpenter has his thesis: 'the 2nd Am protects state militia.' Now let him prove his thesis like the doctoral candidate he is -- let him search the library and show us that under law the amendment actually does preserve state power over the militia.

J. Norman Heath

Clayton E. Cramer -
5/15/2002

"Telephones and computers are not designed for the purpose of killing."

This statement has a number of serious problems. The most blatant is that there are times that killing is a very good thing. Ask the Jews of Warsaw who decided to be primitive and fight back against the Nazis. Ask freedmen who fought back--with guns--against the Klan. Ask Harriet Tubman, who made hundreds of trips South to lead slaves to freedom on the Underground Railroad--and she usually carried a rifle.

Clayton E. Cramer -
5/15/2002

I'm confused. Where did I suggest that the Second Amendment was a magic pill that solved all human evils?

Clayton E. Cramer -
5/15/2002

USA v. Emerson, not Emerson v. US.

Pierre S. Troublion -
5/15/2002

Telephones and computers are not designed for the purpose of killing. Beyond problems of illogic we may be dealing here with an ignorance of basic 20th century technology.

Squanto -
5/15/2002

Many hundreds of thousands of white men died in a big war of the 1860s between Old Glory and Stars and Bars (for those "pilgrim bobs" who know no American history this has been called the Civil War) and the Second Amendment did not save them because it was irrelevant to that war (and to Auschwitz and Rwanda, but not to Columbine High School).

Alec Lloyd -
5/15/2002

So the Civil War is now the fault of the Second Amendment? Fascinating. If anyone is going to win the illogic olympics, it's you guys.

Mr. Cramer is correct. The fact that most of the world curtails the freedom of its own people is not a good reason for us to join them. I should think a rational person would prize their liberties that much more.

Apparently our pseudonymus correspondants (why do the rude ones always hide their names?) are willing to make the false trade the Founders rejected.

I might just as easily argue that the First Amendment is a dangerous anachronism given the growth and ease of information transmittal. If the Founders couldn't forsee school shootings, they certainly had no idea bomb-making information could be quickly and easily transferred around the globe.

Better to pull down the Internet than risk another terrorist strike. How many buildings must fall before we take action?

Indeed, we may also want to license newspaper editors, perhaps subjecting them to background checks as well. Speech can kill, as Hitler and Lenin have so amply proven (not to mention fringe wackos who win unsuspecting converts to their cause).

Surely no one would object to the federal registration and licensing of all communication devices, with felons and the mentally unstable forbidden from using computers or telephones. The risk of them coordinating some crime is simply too great. If we had had strict Internet and cell phone registration, the Sept. 11 attacks might never have happened.

Indeed, people wishing to have these dangerous devices should be rigorously screened and subject to fingerprinting and background checks. Unauthorized users should be fully prosecuted. Perhaps we should also add a "need" clause to this law. Humanity lacked cell phones for thousands of years. Who really "needs" them anyway?

After all, none of these devices existed back in 1789 and restricting their use would in no way infringe on true "speech." People could still SAY whatever they wanted, they simply wouldn't be allowed to transmit inappropriate thoughts, ideas or criminal plans.

Just think of how much safer we'll all be.

pilgrimbob -
5/15/2002

Common Sense ( what a misnomer) and j cuepublic fail utterly to rebut Mr. Cramer's arguments. Not suprising since Cramer understands American history and has a rational mind. Nonsence and public can only rant and rave since the facts and the law are against them

Common Sense -
5/14/2002

Mr. Cramer's monocausal fantasy proves nothing. Was the great and glorious and all-encompassing second amendment in some sort of suspension between 1861-65 when, as I recall, a few Americans died as the result of a small dispute involving governmental power ?

Peter -
5/14/2002

This is exactly the kind of opinion piece I would expect from a doctoral candidate at a second rate university.

Where is the mention of Emerson vs. US?

It wasn't THAT long ago. As a matter of FACT, it was November 2, 2001.

You'll definitely get your doctorate degree after this piece of politically biased crap. You deserve it.

Read the decision here:

http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm

Clayton E. Cramer -
5/14/2002

If the Second Amendment is an anachronism, like those other
examples, then there is a process for amending it. Use that
process if you think it is appropriate.

It is not at all clear, however, that it is an anachronism.
The purpose of guaranteeing a right to keep and bear arms was
to make sure that the populace had the power to protect
themselves from criminals both public and private. The 20th
century was filled with examples of what happens when you
grant unlimited power to a government: Auschwitz; the Gulag
Archipelago; the Khmer Rouge; the Armenian genocide; East Timor.

There are also plenty of examples of what happens when the government does nothing to protect minorities: such as the recent tribal massacres in Burundi; lynchings throughout the South; race riots that destroyed thriving and sometimes even prosperious black communities in the U.S.; what happened to Koreatown in Los Angeles, where the police disarmed many shopkeepers, who were thus prevented from protecting their property from looters and vandals.

The evils that the Second Amendment was intended to prevent have not gone away.

J. Cuepublic -
5/14/2002

The second Amendment, like the electoral college or black slaves being equal to 3/5 of free whites (Article 1, section 2, paragraph 3), is an anachronism. Unless you "think", as the NRA does, that the rest of the civilized world consists of handwringing, irrelevant ranters who are too foolish to know how to properly worship at the alter of personal gun ownership.

Clayton E. Cramer -
5/14/2002

"The rabbit is the reinterpretation of the Second Amendment as understood by Supreme Courts, Justice Departments, and legal scholars since 1939. It was in that year, in United States v. Miller, that the high Court frowned on folks toting around sawed-off shotguns and decided Congress had the constitutional right to do something about it."

Well, no. Miller is a masterpiece of avoiding the issue, and decided quite a bit less than Mr. Carpenter thinks. Miller and Layton, the defendants, were not represented before the Court. Why? Because they had been released by the trial judge who had ruled that the National Firearms Act of 1934 violated the Second Amendment. The Supreme Court did not rule that NFA34 was constitutional; what they ruled was that the trial judge had erred in taking it under judicial notice (rather than asking for expert testimony or other evidence) that a sawed-off shotgun was a protected weapon. All that Miller really decided was that the trial judge had screwed up, and ordered retrial of the question.

What is also interesting is what a long and involved decision Miller was, if the right in question was a right of the states to maintain militias. The decision could have been simplified dramatically, perhaps to something as simple as, "The right in question is only that of the states, not of individuals. Mr. Miller was not a member of the Arkansas National Guard, therefore the Second Amendment has no relevance to the constitutionality of the National Firearms Act." But Miller made no such simple decision. Instead, it considered the question of whether a sawed-off shotgun was a militia type of weapon -- not at all the sort of question that would matter if the Second Amendment didn't protect an individual right.

The list of decisions that appears in Miller is a list that only the Solicitor General could have come up with -- and yet nearly every one of those decisions acknowledged that the right to keep and bear arms was an individual right -- not a right of the states. If you want to know more about Miller and the case law that leads up to it, my book _For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms_ (Praeger Press, 1994) will be illuminating. The trial judge in USA v. Emerson (N.D.Texas 1999) thought so; he cited it as an authority when ruling that the Second Amendment protected an individual right. That position was upheld by the U.S. Fifth Circuit Court of Appeals in 2001.

Mr. Carpenter thinks that the Bush Administration has taken a position contrary to that of legal scholars. Actually, the vast majority of published scholarship on this subject agrees with the individual rights view. Laurence Tribe, hardly a right-winger, has come around to this view. Akil Reed Amar, another liberal law professor, has done likewise. While there is disagreement about what are the appropriate limits of that individual right, only the most rigid gun control advocates are still insisting that the Second Amendment protects an right of the states. Even Senator Charles Schumer (D-NY) has recently acknowledged this! (The sky is going to fall, the sky is going to fall!)

Alec Lloyd -
5/14/2002

This article is a poorly thought-out and utterly worthless rant.

Setting aside the author's visceral hatred of the President (which is utterly irrelevant), the case for the Second Amendment being an individual right is incontrovertible.

The text reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Now this amendment is unique insofar as it is the ONLY part of the Bill of Rights where the words "the people" have been contorted to mean something else. Yet so strong and illogical is the gun-control movement, that this elementary language eludes them.

If it were meant to convey a "collective" right, why put "the people" in there? Who are "the people" to which this refers? When the Founders meant "the states" they wrote "the states." Somehow, we are expected to believe that a preamble is the subject and that when the Founders wrote one thing, they really meant something completely different.

In the Tenth Amendment, the Founders clearly divide the states and the people, yet here we are expected to believe "people" means "states."

So what we have is an argument that in the First, Fourth, Ninth and Tenth Amendments, when the Founders wrote "people" they meant "people" but in the Second when they wrote "people" they really meant "states."

Handwringing aside, what the Bush Administration has done is restore a long-eroded right. Like all rights, it can be abused, but that is no excuse for curtailing it.

Lonnie Jaycox -
5/14/2002

That the overwhelming majority of americans see the 2nd as protecting an individual's right. What is making the gun control people so angry about this is that they now have to argue this very un-popular position (collective right) in public.
Your squealing is music to my ears on this one.

Common Sense -
5/13/2002

This piece sheds a welcome light an under-illuminated outrage. In the hands of President Dubya, strict constructionism has been turned into strict hypocrisy. At least Daddy George had the guts to stand up to the idiocies of the NRA. I wonder how many of their own children have to be shot up in school before they realize the obvious drawbacks of misreading the Constitution and the obvious differences between 1790 and 2002 ?